The King v. Burwell Aftermath
by John Hayward 25 Jun 2015
One of the core problems with a decision like the Supreme
Court’s King v. Burwell ruling
is that it does the opposite of what a Supreme
Court presided over by justices-for-life is supposed to do.
As Chief Justice Roberts
makes abundantly clear in his ruling, he looked at politics, not the
law, concluding that upholding the clear text of the Affordable Care Act would
have killed it, and inflicted chaos on a health insurance system already driven
mad by ObamaCare.
He made a political judgment – with copious pressure from President Obama and his followers, and the weight of his own
previous decision to put politics above the law to preserve the individual
mandate – that the Affordable Care Act was a writ of nearly-unlimited power to
do what its framers say they want to accomplish today, not a
law with a balance of both power and responsibility based on
what it said at the moment it was signed.
This is a very bad precedent to set, especially if Roberts’
reasoning is followed to the conclusion that the bigger and more
ambiguously-written a law is, the more untrammeled executive power it grants.
No matter what ultimately becomes of ObamaCare, that will come
back to haunt us in many other contexts in the future.
As for the political fallout from the decision, much of the
punditry written beforehand assumed the federal subsidies would fall, and
Republicans would either be muscled into passing a quick fix to restore them,
or face a presidential campaign season filled with tinkly-piano ads about how
mean old Republicans took away Mommy’s health care subsidies. It really is hard
to escape the conclusion that this would have been the worst possible political
outcome for the GOP – watching the marshmallow leadership fall all over
themselves to get a clean subsidy fix passed before they jetted off for summer
vacation would have driven the GOP base – and the millions of persuadable
American voters suffering higher premiums, higher deductibles, worse access to
providers, and paying taxes to subsidize other peoples’ plans
– out of their minds.
I am of the opinion that tough political outcomes are a
burden worth bearing to preserve the rule of law, but here we are instead:
Democrats doing a creepy “ALL DEBATE IS NOW OVER!” victory dance to celebrate
the Constitution-smashing preservation of a law the American people don’t like,
whose passage has already blown them into a congressional minority, and which
they own 100 percent. It would be easier to maintain optimism about Republicans
fighting on such favorable political terrain if they had demonstrated an
institutional talent for fighting winning battles on solid ground, and doing
important things with the power thus obtained.
The American people are getting a raw deal out of ObamaCare,
but the President was not wrong when he crowed today that the law is working
the way he wanted it to. The American system has been bent and twisted beyond
recognition by the agonizing pain of digesting a law that conflicts with such
basic values as the freedom of religion, and even the freedom to decline engaging
in commerce. The “consent of the governed” matters less than ever. The amount
of money sucked down by ObamaCare and distributed to the government’s Little
Partners in the insurance industry is staggering. A huge swath
of the formerly independent middle class is now helplessly dependent on subsidy
payments, whose termination can be threatened if they get any funny ideas about
putting the Leviathan State on a diet.
The price Democrats paid for all that was the loss of seats
in a national legislature they have marginalized, to the point President Obama
simply dismissed the 2014 midterm elections by declaring he would exercise
power on behalf of the people who didn’t vote. The Roberts decision renders the
plain text of laws less meaningful than what the executive branch desires. If
we end up with a Democrat president and one or both houses of Congress in
Republican hands next time, the importance of Congress will be further
diminished. It’s all been a bit rough on the individual Democrats who lost
their seats over ObamaCare, but don’t worry – they parlayed their years of
“service” into very comfortable fortunes and parasitic post-congressional
careers, they’ll be just fine.
The GOP leadership doesn’t seem powerfully inclined to
defend the prerogatives of Congress or uphold the rule of law. With law out of
the picture, they had better understand how everything is
about politics and power now. The gloves need to come off.
The Left will redouble its efforts to silence and
marginalize Americans who are suffering under ObamaCare. Republicans should
demolish that scam with vigor. Get those people out there to talk about their
huge premium hikes, ridiculous deductible payments, and restricted doctor
networks. Make sure they mention how good they had it before ObamaCare came
along. Spotlight every state exchange failure, every insurance company
collapse, every shuttered hospital, every study that shows how emergency rooms
are being abused worse than ever. (That last bit is important, because for a
lot of average voters, the argument that mandatory insurance coverage was the
only way to control cost-shifting was one of the most sensible cases made in
favor of ObamaCare.)
It will be a lot to hope for the GOP to consolidate behind a
unified repeal proposal and ObamaCare alternative, especially during a
presidential race when every candidate wants to tout their fix,
but I’d say one the presidential candidate is determined, the rest of the GOP
would be well advised to close ranks behind their preferred proposal. The
American people really do respond to firm, clear promises, as the Republicans’
2014 midterm sweep demonstrated. (Let us avoid contemplating what they’ve
actually been doing with the congressional majorities they
asked America for, except to understand it as an example of what should be
avoided in 2017.)
A clear statement of ObamaCare’s problems, combined with a
logical case for the alternative, is salable political product. Keeping those
promises in 2017 would allow Republicans to make a devastating case that they
can be trusted, in a way the Democrats who desperately need everyone to forget
ObamaCare’s 2010 promises cannot.
The Left loves their Alinksy tactics, their Cloward-Piven
attacks – creating chaos and then offering bigger government as the only
solution, finding the weak points in private systems and ruthlessly attacking
them. The Right can do the same thing. Exploit the weaknesses in ObamaCare
without mercy. Throw the Roberts decision back in the Left’s face at every
opportunity – we can write ambiguous laws and interpret them as we see fit,
too! Play up the complaints, unrelentingly hold ObamaCare up to the standards
set when it was passed – never let the Left-media convince you those “if you
like your plan, you can keep your plan” clips are past their sell-by dates.
ObamaCare was always designed to fail, and usher in
single-payer health care. The Left’s panic at stress moments when it looked
like ObamaCare would collapse prematurely was very instructive. Don’t let this
thing run its course, especially since the Roberts decision could be
interpreted as allowing much of single-payer to be imposed by executive fiat
without any new legislation passed. Why not? The “context” of the ACA was to
give everyone health care, right? If this monstrous law implodes, why should
any new legislation be necessary to nationalize health insurance completely,
followed by medicine itself? There must be some more “ambiguous” language in
there that could be stretched to the necessary dimensions.
Aggressively get Democrats on the record defending
ObamaCare, and sneering at the people who don’t like it. It won’t be hard to do
– there are few things more ugly and callous than a Democrat telling working
people struggling with 150 percent premium hikes to get bent, because their
sacrifice is necessary to give the Democrats’ preferred constituents a free
lunch. It will be especially easy to squeeze such brutal sound bites out of
Hillary Clinton – she once brushed off the economic chaos that would be caused
by her own health care power grab by snarling that she’s not responsible for
the collapse of “undercapitalized” businesses. This sort of thing is her weak
spot. Hit it hard.
Most people get a queasy feeling when they hear the phrase
“the ends justify the means.” They know that’s wrong, and they know those words
have been cited to justify tyranny and evil. The Roberts decision is wholly based
on that idea. The American system was founded on the opposite ideal: that the
ends do not justify the means, the system should not be
shredded to impose a “good idea” with haste, the rule of law is more important
than any goal that could be achieved by discarding it.
A great deal of the Left’s moaning about “divisive” politics
is a demand for conservatives and taxpaying Americans to roll over and play
dead, offering no resistance to fierce liberal armies marching over them.
ObamaCare was a declaration of war against the American middle class, and those
trumpets are sounding louder than ever after the Roberts decision in King
v. Burwell, which takes liberty and dignity away from individuals and
gives it to politicians and bureaucrats, because it says they must be given as
much power as they need to accomplish their vaguely-defined ends, and that
power has to come from somewhere. Greater power means less
freedom, always.
A “law” that imposes no restraint or obligation on the
government, not even the need to respect the plain text of the law itself,
contains a payload of power that should be unacceptable to every patriotic
American. Sometimes Republicans talk about the Constitution as an object of
worship, an abstract idea they hold in reverence, without discussing its
practical effect upon the real world. Well, Chief Justice Roberts just gave us
a very powerful example of how the abandonment of Constitutional principle
disrupts the everyday lives of ordinary people. Use it.
Make that case properly to voters, let them know just how
much power the Supreme Court and Big Government are seizing, and put the rule
of law on the ballot. And for the sake of the Republic, Republicans, don’t
mumble or stammer when you do it.
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